Detainee Provisions in the National Defense
Authorization Bills
Jennifer K. Elsea
Legislative Attorney
Michael John Garcia
Legislative Attorney
July 18, 2011
Congressional Research Service
7-5700
www.crs.gov
R41920
CRS Report for Congress
P
repared for Members and Committees of Congress
Detainee Provisions in the National Defense Authorization Bills
Summary
Both House and Senate bills competing to become the National Defense Authorization Act of
FY2012 contain a subtitle addressing issues related to detainees at the U.S. Naval Station at
Guantanamo Bay, Cuba, and more broadly, hostilities against Al Qaeda and other entities. At the
heart of both bills’ detainee provisions appears to be an effort to confirm or, as some observers
view it, expand the detention authority that Congress implicitly granted the President via the
Authorization for Use of Military Force (AUMF, P.L. 107-40) in the aftermath of the terrorist
attacks of September 11, 2001.
H.R. 1540, as passed by the House of Representatives on May 26, 2011, contains provisions that
would reaffirm the conflict and define its scope; impose specific restrictions on the transfer of any
non-citizen wartime detainee into the United States; place stringent conditions on the transfer or
release of any Guantanamo detainee to a foreign country; and require that any foreign national
who has engaged in an offense related to a terrorist attack be tried by military commission if
jurisdiction exists. S. 1253, as reported out of the Senate Armed Services Committee, would
authorize the detention of certain categories of persons and require the military detention of a
subset of them; regulate status determinations for persons held pursuant to the AUMF, regardless
of location; regulate periodic review proceedings concerning the continued detention of
Guantanamo detainees; and make permanent the current funding restrictions that relate to
Guantanamo detainee transfers to foreign countries. The Senate bill, however, would permit the
transfer of detainees into the United States for trial or perhaps for other purposes.
Shortly before H.R. 1540 was approved by the House, the White House issued a statement
regarding its provisions. While supportive of most aspects of the bill, it was highly critical of
those provisions concerning detainee matters. The Administration voiced strong opposition to the
House provision reaffirming the existence of the armed conflict with Al Qaeda and arguably
redefining its scope. It threatened to veto any version of the bill that contains provisions that the
Administration views as challenging critical executive branch authority, including restrictions on
detainee transfers and measures affecting review procedures. Although the Administration has not
issued a similarly detailed statement regarding S. 1253, it seems likely that many of the Senate
bill’s detainee provisions will evoke similar objections.
This report offers a brief background of the salient issues raised by the bills regarding detention
matters, provides a section-by-section analysis of the relevant subdivision of each bill, and
compares the bills’ approach with respect to the major issues they address.
Congressional Research Service
Detainee Provisions in the National Defense Authorization Bills
Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 1
Scope of Detention Authority Conferred by the AUMF ......................................................... 4
Status Determinations for Unprivileged Enemy Belligerents.................................................. 7
“Recidivism” and Restrictions on Transfer ............................................................................ 9
H.R. 1540: Summary and Analysis of Detainee Provisions ........................................................ 11
Definitions .......................................................................................................................... 11
Military Commissions Act Revision .................................................................................... 12
Affirmation of Armed Conflict; Detention Authority ........................................................... 12
Periodic Review of Detention of Persons at Guantanamo .................................................... 15
Transfer or Release of Wartime Detainees into the United States ......................................... 17
Transfer or Release of Guantanamo Detainees to Foreign Countries .................................... 18
Other Guantanamo-Related Provisions ................................................................................ 20
Terrorism Trials .................................................................................................................. 21
General Counterterrorism Matters ....................................................................................... 23
S. 1253: Summary and Analysis of Detainee Provisions ............................................................ 24
Detention Authority ............................................................................................................ 24
Mandatory Military Detention............................................................................................. 25
Transfer or Release of Guantanamo Detainees to Foreign Countries .................................... 28
Transfer of Guantanamo Detainees Into the United States.................................................... 29
Periodic Review of Detention of Persons at Guantanamo .................................................... 30
Status Determination of Wartime Detainees......................................................................... 30
Military Commissions Act Revision .................................................................................... 32
Contacts
Author Contact Information ...................................................................................................... 32
Congressional Research Service
Detainee Provisions in the National Defense Authorization Bills
Introduction
Both House and Senate bills competing to become the National Defense Authorization Act of
FY2012 contain a subtitle addressing issues related to detainees at the U.S. Naval Station at
Guantanamo Bay, Cuba (“Guantanamo”), and more broadly, hostilities against Al Qaeda and
other entities. H.R. 1540, which passed the House of Representatives May 26, 2011, addresses
“counterterrorism” matters in subtitle D of Title X. The companion bill in the Senate, S. 1253,
was reported out of the Armed Services Committee June 22, 2011, and addresses “detainee
matters” in subtitle D of Title X. This report offers a brief background of the salient issues,
provides a section-by-section analysis of the relevant subdivision of each bill, and compares the
bills’ approach with respect to the major issues they address.
Background
At the heart of both bills’ detainee provisions appears to be an effort to confirm or, as some
observers view it, expand the detention authority Congress implicitly granted the President in the
aftermath of the terrorist attacks of September 11, 2001. In enacting the Authorization for Use of
Military Force (P.L. 107-40) (“AUMF”), Congress authorized the President
to use all necessary and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by such nations, organizations
or persons.
Many persons captured during subsequent U.S operations in Afghanistan and elsewhere have
been placed in preventive detention to stop them from participating in hostilities or terrorist
activities. A few have been tried by military commission for crimes associated with those
hostilities,1 while many others have been tried for terrorism-related crimes in civilian court.
In 2004 case of Hamdi v. Rumsfeld, a majority of the Supreme Court recognized that, as a
necessary incident to the AUMF, the President may detain enemy combatants captured while
fighting U.S. forces in Afghanistan, and potentially hold such persons for the duration of
hostilities.2 The Hamdi decision left to lower courts the task of defining the scope of detention
authority conferred by the AUMF, including whether the authorization permits the detention of
members or supporters of Al Qaeda, the Taliban, or other groups who are apprehended away from
the Afghan zone of combat.
Most subsequent judicial activity concerning U.S. detention policy has occurred in the D.C.
Circuit, where courts have considered numerous habeas petitions by Guantanamo detainees
challenging the legality of their detention. Rulings by the U.S. Court of Appeals for the D.C.
1 To date there have been six convictions by military commissions, four of which were procured by plea agreement. For
more information about military commissions, see CRS Report R40932, Comparison of Rights in Military Commission
Trials and Trials in Federal Criminal Court, by Jennifer K. Elsea.
2 Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (O’Connor, J., plurality opinion); id. at 588-589 (Thomas, J.,
dissenting).For more information about relevant court decisions, see CRS Report R41156, Judicial Activity Concerning
Enemy Combatant Detainees: Major Court Rulings, by Jennifer K. Elsea and Michael John Garcia.
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Circuit have generally been favorable to the legal position advanced by the government regarding
the scope of its detention authority under the AUMF.3 It remains to be seen whether any of these
rulings will be reviewed by the Supreme Court and, if such review occurs, whether the Court will
endorse or reject the circuit court’s understanding of the AUMF and the scope of detention
authority it confers.
Thus far, Congress has not enacted any legislation to directly assist the courts in defining the
scope of detention authority granted by the AUMF. The D.C. Circuit has, however, looked to
post-AUMF legislation concerning the jurisdiction of military commissions for guidance as to the
categories of persons who may be subject to military detention. In 2010, the circuit court
concluded that the government had authority under the AUMF to detain militarily persons subject
to the jurisdiction of military commissions established pursuant to the Military Commissions Acts
of 2006 and 2009 (“MCA”); namely, those who are “part of forces associated with Al Qaeda or
the Taliban,” along with “those who purposefully and materially support such forces in hostilities
against U.S. Coalition partners.”4
Most of the persons detained under the authority of the AUMF are combatants picked up during
military operations in Afghanistan or arrested elsewhere abroad. Many of these individuals were
transported to the U.S. Naval Station at Guantanamo Bay, Cuba for detention in military custody,
although a few “high value” Guantanamo detainees were initially held at other locations by the
CIA for interrogation. A U.S.-operated facility in Parwan, Afghanistan holds an even larger
number of detainees, most of whom were captured in Afghanistan.5 Neither of these two
detention facilities, however, appears to be considered a viable option for future captures that take
place outside of Afghanistan; the current practice in such cases seems to be ad hoc.6
In almost all instances, persons arrested in the United States who have been suspected of terrorist
activity on behalf of Al Qaeda or affiliated groups have not been placed in military detention
pursuant to the AUMF, but instead have been prosecuted in federal court for criminal activity.
There were two instances in which the Bush Administration transferred persons arrested in the
United States into military custody and designated them as “enemy combatants.” However, in
both cases, the detainees were ultimately transferred back to the custody of civil authorities and
tried in federal court when it appeared that the Supreme Court would hear their habeas petitions,
leaving the legal validity of their prior military detention uncertain.7
3 See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
Jennifer K. Elsea and Michael John Garcia.
4 Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (quoting the Military Commissions Act of 2006, P.L. 109-
366, §3, and the Military Commissions Act of 2009, P.L. 111-84, Div A, §1802), cert. denied, 131 S. Ct. 1814 (2011).
5 The Parwan detention facility took over detention operations previously conducted at the Bagram Theater Internment
Facility. See Lisa Daniel, Task Force Ensures Fair Detainee Treatment, Commander Says, American Forces Press
Service, Aug. 6 2010, available at http://www.defense.gov/News/NewsArticle.aspx?ID=103004. The detention center,
which reportedly holds about 900 detainees on any given day, is slated to be turned over to Afghan authority by
January, 2012. Id. Fewer than 50 of the detainees at the time of the news article were said to be non-Afghans, 75% of
whom were from Pakistan.
6 U.S. Congress, Senate Committee on Armed Services, Hearing to Consider the Nomination of Vice Admiral William
H. McRaven, USN, 112th Cong., 2nd sess., June 28, 2011, p. 43 [hereinafter “McRaven Testimony”], transcript
available at http://armed-services.senate.gov/Transcripts/2011/06%20June/11-59%20-%206-28-11.pdf. Admiral
McRaven indicated that captures outside a theater of operations like Iraq or Afghanistan are treated on a case-by-case
basis.
7 al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (per curiam), cert. granted by 129 S.Ct. 680 (2008), vacated and
remanded for dismissal on mootness grounds by al-Marri v. Spagone, 129 S.Ct. 1545 (2009); Padilla v. Hanft, 423 F.3d
(continued...)
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Over the years, there has been considerable controversy over the appropriate mechanism for
dealing with suspected belligerents and terrorists who come into U.S. custody. Some have argued
that all suspected terrorists (or at least those believed to be affiliated with Al Qaeda) should be
held in military custody and tried for any crimes they have committed before a military
commission. Others have argued that such persons should be transferred to civilian law
enforcement authorities and be tried for any criminal offenses before an Article III court. Still
others argue that neither a military nor traditional law enforcement model should serve as the
exclusive method for handling suspected terrorists and belligerents who come into U.S. custody.
They urge that such decisions are best left to executive discretion for a decision based on the
distinct facts of each case.
Disagreement over the appropriate model to employ has become a regular occurrence in high-
profile cases involving suspected terrorists. In part as a response to the Obama Administration’s
plans to transfer certain Guantanamo detainees, including Khalid Sheik Mohammed, into the
United States to face charges in an Article III court for their alleged role in the 9/11 attacks,
Congress passed funding restrictions that effectively bar the transfer of any Guantanamo detainee
into the United States for the 2011 fiscal year, even for purposes of criminal prosecution.8 This
restriction effectively makes trial by military commission the only viable option for prosecuting
Guantanamo detainees for the foreseeable future, as no civilian court operates at Guantanamo.
Considerable attention has also been drawn to other instances when terrorist suspects have been
apprehended by U.S. military or civilian law enforcement authorities. On July 5, 2011, Somali
national Ahmed Abdulkadir Warsame was brought to the United States to face terrorism-related
charges in a civilian court, after having reportedly been detained on a U.S. naval vessel for two
months for interrogation by military and intelligence personnel.9 Some have argued that Warsame
should have remained in military custody abroad, while others argue that he should have been
transferred to civilian custody immediately. Controversy also arose regarding the arrest by U.S.
civil authorities of Umar Farouk Abdulmutallab and Faisal Shahzad,10 who some argued should
have been detained and interrogated by military authorities and tried by military commission. The
Administration incurred additional criticism for bringing civilian charges against two Iraqi
refugees arrested in the United States on suspicion of having participated in insurgent activities in
Iraq against U.S. military forces,11 although the war in Iraq has generally been treated as separate
from hostilities authorized by the AUMF, at least insofar as detainee operations are concerned.
(...continued)
386 (4th Cir. 2005). See also CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major
Court Rulings, by Jennifer K. Elsea and Michael John Garcia (discussing al-Marri and Padilla litigation).
8 Ike Skelton National Defense Authorization Act for FY2011 (2011 NDAA), P.L. 111-383, §1032 (applying to
military funds); Department of Defense and Full-Year Continuing Appropriations Act, 2011 (2011 CAA), P.L. 112-10,
§1012. (applying to any funds appropriated by the 2011 CAA or any prior act). For further background, see CRS
Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Michael John Garcia.
9 Peter Finn and Karen DeYoung, In Detention Case, a Blend of Two Systems, WASH. POST, Jul. 6, 2011, at A02,
available online at http://www.washingtonpost.com/national/national-security/in-somali-terror-suspects-case-
administration-blends-military-civilian-systems/2011/07/06/gIQAQ4AJ1H_story.html.
10 Umar Farouk Abdulmutallab is a Nigerian national accused of trying to destroy an airliner traveling from Amsterdam
to Detroit on Christmas Day 2009. He was apprehended and interrogated by civilian law enforcement before being
charged in an Article III court. Faisal Shahzad, a naturalized U.S. citizen originally from Pakistan, was arrested by
civilian law enforcement and convicted in federal court for his attempt to detonate a bomb in New York’s Time Square
in 2010.
11 See Jeremy Pelofsky, US Lawmaker Wants Accused Iraqis sent to Guantanamo, REUTERS NEWS, June 14, 2011.
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It appears likely that the 2012 NDAA will contain provisions addressing the disposition of
persons apprehended by U.S. authorities in the conflict with Al Qaeda. H.R. 1540, as passed by
the House of Representatives on May 26, 2011, contains provisions that would reaffirm the
conflict and define its scope; impose specific restrictions on the transfer of any non-citizen
wartime detainee into the United States; establish stringent conditions upon the transfer or release
of any Guantanamo detainee to a foreign country; and require that any foreign national who has
engaged in an offense related to a terrorist attack be tried by military commission if jurisdiction
exists. S. 1253, as reported out of the Senate Armed Services Committee, would authorize the
detention of certain categories of persons and require the military detention of a subset of them;
regulate status determinations for persons held pursuant to the AUMF, regardless of location;
regulate periodic review proceedings concerning the continued detention of Guantanamo
detainees; and make permanent the current funding restrictions that relate to Guantanamo
detainee transfers to foreign countries.
Shortly before H.R. 1540 was approved by the House, the White House issued a statement
regarding its provisions. While supportive of most aspects of the bill, it was highly critical of
those provisions concerning detainee matters. It threatened to veto any version of the bill that
contains provisions that the Administration views as challenging critical executive branch
authority.12 Although the Administration has not issued a similarly detailed statement regarding S.
1253, it seems likely that many of the Senate bill’s detainee provisions will evoke similar
objections.
The following sections address the current status of U.S. policies and legal authorities with
respect to detainee matters that are addressed in the House or Senate versions of the FY2012
NDAA. The first section addresses the scope of detention authority under the AUMF as the
Administration views it and as it has developed in court cases. The following section provides an
overview of current practice regarding initial status determinations and periodic reviews of
detainee cases. The background ends with a discussion of recidivism concerns underlying current
restrictions on transferring detainees from Guantanamo.
Scope of Detention Authority Conferred by the AUMF
Although the AUMF constitutes the primary legal basis supporting the detention of persons
captured in the conflict with Al Qaeda and affiliated entities, the scope of the detention authority
it confers is not made plain by its terms, and accordingly can be the subject to differing
interpretations. The Obama Administration framed its detention authority under the AUMF in a
March 13, 2009 court brief as follows:
The President has the authority to detain persons that the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,
and persons who harbored those responsible for those attacks. The President also has the
authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida
forces or associated forces that are engaged in hostilities against the United States or its
12 See Exec. Office of the Pres., Statement of Administration Policy on H.R. 1540 (May 24, 2011), available at
http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr1540r_20110524.pdf (objecting in
particular to section 1039 [barring transfer of detainees to the United States] as a “dangerous and unprecedented
challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts
and the circumstances of each case and our national security interests”). At the time these objections were made public,
the bill did not yet contain the provision requiring military commission trials for certain offenders.
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coalition partners, including any person who has committed a belligerent act, or has directly
supported hostilities, in aid of such enemy armed forces.13
While membership in Al Qaeda or the Taliban seems to fall clearly within the parameters of the
AUMF, the inclusion of “associated forces,” a category of indeterminate breadth, could raise
questions as to whether the detention authority claimed by the Executive exceeds the AUMF’s
mandate. The “substantial support” prong of the Executive’s description of its detention authority
may raise similar questions. The Supreme Court in Hamdi interpreted the detention authority
conferred by the AUMF with reference to law of war principles, and there is some dispute as to
when and whether persons may be subject to indefinite detention under the law of war solely on
account of providing support to a belligerent force.14 In its 2009 brief, the government declined to
clarify these aspects of its detention authority:
It is neither possible nor advisable, however, to attempt to identify, in the abstract, the
precise nature and degree of “substantial support,” or the precise characteristics of
“associated forces,” that are or would be sufficient to bring persons and organizations within
the foregoing framework.15
The Obama Administration’s definition of its scope of detention authority is similar to the Bush
Administration’s definition describing who could be treated as an “enemy combatant,” differing
only in that it requires “substantial support,” rather than “support.”16 Recent court decisions have
not shed much light on the “substantial support” prong of the test to determine detention
eligibility, with all cases thus far adjudicated by the Court of Appeals of the D.C. Circuit relying
on proof that a detainee was functionally part of Al Qaeda, the Taliban, or an associated force.17
The executive branch has included “associated forces” as part of its description of the scope of its
detention authority since at least 2004, after a majority of the Supreme Court held in Hamdi that
the AUMF authorized the detention of enemy combatants for the duration of hostilities.18 The
13 See In re Guantanamo Bay Detainee Litigation, Respondents’ Memorandum Regarding the Government’s Detention
Authority Relative to Detainees Held at Guantanamo Bay, No. 08-0442, filed March 13, 2009 (D.D.C.)(hereinafter
“Government Brief”). This government brief is posted on the Department of Justice website at http://www.justice.gov/
opa/documents/memo-re-det-auth.pdf.
14Compare Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009) (finding that detention on account of providing
substantial or direct support to a belligerent, without more, is inconsistent with the laws of war), abrogated by Al-
Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) with Ryan Goodman, The Detention of Civilians in Armed Conflict,
103 A.J.I.L. 48 (2009) (discussing instances where the laws of war permit the detention of persons who have not
directly participated in hostilities, including persons posing a security threat on account of their “indirect participation
in hostilities,” albeit as civilians rather than combatants). See also Allison M. Danner, Defining Unlawful Enemy
Combatants: A Centripetal Story, 43 TEX. INT'L L.J. 1 (2007) (suggesting that the justification for detaining persons for
providing “support” to Al Qaeda or the Taliban is influenced by principles of U.S. criminal law).
15 Government Brief, supra footnote 13, at 2. The government also claimed that the contours of the definition of
“associated forces” would require further development through their “application to concrete facts in individual cases.”
Id.
16 See Parhat v. Gates, 532 F.3d 834, 838 (D.C. Cir. 2008) (quoting order establishing Combatant Status Review
Tribunals definition: “an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that
are engaged in hostilities against the United States or its coalition partners. This includes any person who has
committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”)
17 See CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by
Jennifer K. Elsea and Michael John Garcia.
18 Hamdi v. Rumsfeld, 542 U.S. 507 (2004). A plurality of the Supreme Court stated:
The AUMF authorizes the President to use “all necessary and appropriate force” against “nations,
organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224.
(continued...)
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Court left to lower courts the task of defining the full parameters of the detention authority
conferred by the AUMF, and it did not mention “associated forces” in its opinion.19 In its 2009
brief, the government explained that
[The AUMF does not] limit the “organizations” it covers to just al-Qaida or the Taliban. In
Afghanistan, many different private armed groups trained and fought alongside al-Qaida and
the Taliban. In order “to prevent any future acts of international terrorism against the United
States,” AUMF, § 2(a), the United States has authority to detain individuals who, in
analogous circumstances in a traditional international armed conflict between the armed
forces of opposing governments, would be detainable under principles of co-belligerency.20
This statement is consistent with the position earlier taken by the Bush Administration with
respect to the detention of a group of Chinese Uighur dissidents who had been captured in
Afghanistan and transferred to Guantanamo as members of an “associated force.” In Parhat v.
Gates,21 the D.C. Circuit rejected the government’s contention that one petitioner’s alleged
affiliation with the East Turkistan Islamic Movement (ETIM) made him an “enemy combatant.”
The court accepted the government’s test for membership in an “associated force” (which was not
disputed by petitioner):
(1) the petitioner was part of or supporting “forces”; (2) those forces were associated with al
Qaida or the Taliban; and (3) those forces are engaged in hostilities against the United States
or its coalition partners. 22
The court did not find that the government’s evidence supported the second and third prongs, so it
found it unnecessary to reach the first. The government had defined “associated force” to be one
that “becomes so closely associated with al Qaida or the Taliban that it is effectively ‘part of the
same organization,’” in which case it argued ETIM is covered by the AUMF because that force
“thereby becomes the same ‘organization[ ]’ that perpetrated the September 11 attacks.” If the
definition asserted by the government in Parhat is adopted, then the term would seem to require a
close operational nexus in the current armed conflict. On the other hand, as the court noted,
(...continued)
There can be no doubt that individuals who fought against the United States in Afghanistan as part
of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible
for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that
detention of individuals falling into the limited category we are considering, for the duration of the
particular conflict in which they were captured, is so fundamental and accepted an incident to war
as to be an exercise of the “necessary and appropriate force” Congress has authorized the President
to use.
Id. at 518 (O’Connor, J., plurality opinion).
19 The plurality cited with apparent approval the declaration of a government official in explaining why the petitioner,
who had surrendered to the Northern Alliance in Afghanistan, was considered to be an “enemy combatant”:
[B]ecause al Qaeda and the Taliban “were and are hostile forces engaged in armed conflict with the
armed forces of the United States,” “individuals associated with” those groups “were and continue
to be enemy combatants.”
Id. at 514 (O’Connor, J., plurality opinion).
20 See Government Brief, supra footnote 13, at 7. One D.C. district judge expressly adopted the “co-belligerency” test
for defining which organizations may be deemed “associated forces” under the AUMF, see Hamilily v. Obama, 616 F.
Supp. 2d 63, 74-75 (D.D.C. 2009), but it does not appear that the D.C. Circuit has adopted that view.
21 532 F.3d 834 (D.C. Cir. 2008) (court challenge under now defunct Detainee Treatment Act judicial review process).
22 Id. at 843 (citations omitted).
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“[t]his argument suggests that, even under the government’s own definition, the evidence must
establish a connection between ETIM and al Qaida or the Taliban that is considerably closer than
the relationship suggested by the usual meaning of the word ‘associated.’”23 The court did not
find that the evidence adduced established that ETIM is sufficiently connected to Al Qaeda to be
an “associated force,” as the government had defined the concept, but the decision might have
come out differently if the court had adopted a plain-language interpretation of “associated
force.”
In its 2009 brief, the government indicated that the contours of the definition of “associated
forces,” would require further development through their “application to concrete facts in
individual cases.”24 In habeas cases so far, the term “associated forces” appears to have been
interpreted only to cover armed groups assisting the Taliban or Al Qaeda in Afghanistan. For
instance, membership in “Zubayda’s militia,” which reportedly assisted Osama bin Laden’s
escape from Tora Bora, has been found to be an “associated force” within the meaning of the
AUMF.25 In another case, the habeas court determined that Hezb–i–Islami Gulbuddin (‘HIG’) is
an “associated force” for AUMF purposes because there was sufficient evidence to show that it
supported continued attacks against coalition and Afghan forces at the time petitioner was
captured.26 The D.C. Circuit also affirmed the detention of a person engaged as a cook for the 55th
Arab Military Brigade, an armed force consisting of mostly foreign fighters that defended the
Taliban from coalition efforts to oust it from power.27 However, the Administration has suggested
that other groups outside of Afghanistan may be considered “associated forces” such that the
AUMF authorizes the use of force against their members.28
Status Determinations for Unprivileged Enemy Belligerents
In response to Supreme Court decisions in 2004 related to “enemy combatants,” the Pentagon
established Combatant Status Review Tribunals (CSRTs) to determine whether detainees brought
to Guantanamo are subject to detention on account of enemy belligerency status. CSRTs are an
administrative and non-adversarial process based on the procedures the Army uses to determine
POW status during traditional wars.29 Guantanamo detainees who were determined not to be (or
23 Id. at 844. The court noted the following exchange that had taken place at an oral hearing:
Judge Sentelle: So you are dependent on the proposition that ETIM is properly defined as being
part of al Qaida, not that it aided or abetted, or aided or harbored al Qaida, but that it’s part of [?]
Mr. Katsas: Correct ... in order to fit them in the AUMF.
Id. & note 4.
24 Id.
25 See Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010).
26 Khan v. Obama, 646 F. Supp. 2d 6 (D.D.C. 2009).
27 Al-Bihani v. Obama, 590 F.3d 866, en banc rehearing denied, 619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct.
1814 (2011).
28 See Harold Hongju Koh, Legal Adviser, U.S. Department of State, The Obama Administration and International
Law, Address at the Annual Meeting of the American Society of International Law, Washington, D.C. (March 25,
2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm.
29 See Department of Defense (DOD) Fact Sheet, “Combatant Status Review Tribunals,” available at
http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf. CSRT proceedings are modeled on the procedures
of Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
(1997), which establishes administrative procedures to determine the status of detainees under the Geneva Conventions
and prescribes their treatment in accordance with international law. It does not include a category for “unlawful” or
“enemy” combatants, who would presumably be covered by the other categories.
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no longer to be) enemy combatants were eligible for transfer to their country of citizenship or
were otherwise dealt with “consistent with domestic and international obligations and U.S.
foreign policy.”30 CSRTs confirmed the status of 539 enemy combatants between July 30, 2004
and February 10, 2009.31 Although the CSRT process has been largely defunct since 2007 due to
the fact that so few detainees have been brought to Guantanamo since that time,32 presumably any
new detainees that might be transported to Guantanamo detention facility would go before a
CSRT. The CSRT process has only been employed with respect to persons held at Guantanamo.
Non-citizen detainees held by the United States in Afghanistan have been subject to a different
status review process which provides detainees with fewer procedural rights.33 Moreover,
whereas the Supreme Court has held that the constitutional writ of habeas extends to non-citizens
held at Guantanamo,34 enabling Guantanamo detainees to challenge the legality of their detention
in federal court, existing lower court jurisprudence has not recognized that a similar privilege
extends to non-citizen detainees held by the United States in Afghanistan.35
Shortly after taking office, President Obama issued a series of executive orders creating a number
of task forces to study issues related to the Guantanamo detention facility and U.S. detention
policy generally. While these groups prepared their studies, most proceedings related to military
commission and administrative review boards at Guantanamo, including the CSRTs, were held in
abeyance pending the anticipated recommendations. The Obama Administration also announced
in 2009 that it was implementing a new review system to determine or review the status of
detainees held at the Bagram Theater Internment Facility in Afghanistan,36 which continues to
30 See DOD Press Release, “Combatant Status Review Tribunal Order Issued” (June 7, 2004), available at
http://www.defense.gov/releases/release.aspx?releaseid=7530; Memorandum from the Deputy Secretary of Defense to
the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, July 7, 2004 (hereinafter “CSRT
Order”), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf; Memorandum from Deputy
Secretary of Defense, Implementation of Combatant Status Review Tribunals Procedures for Enemy Combatants
Detained at U.S. Naval Base Guantanamo Bay, Cuba, July 14, 2006 (hereinafter “CSRT Implementing Directive”),
available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf.
31 See Department of Defense, Combatant Status Review Tribunal Summary, Feb. 10, 2009 [hereinafter “CSRT
Summary”], available online at http://www.defense.gov/news/csrtsummary.pdf. Nearly all CSRT proceedings were
held in 2004, another two dozen were held in 2005, none took place in 2006, fourteen were held in 2007 (likely the
fourteen “high-value” detainees, including Khalid Sheik Mohammed and others previously detained by the CIA), with
numbers dropping off significantly after that time. For more information about the CSRT rules and procedures, see
CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K.
Elsea and Michael John Garcia.
32See Guantanamo Review Task Force, Final Report 1, Jan. 22, 2010, available at http://www.justice.gov/ag/
guantanamo-review-final-report.pdf (reporting statistics related to arrivals at Guantanamo). CSRTs continue to be held
in the event that “new evidence” is received that may affect a detainee’s initial status determination, but these were
temporarily suspended in 2009 along with the suspension of the Annual Administrative Review process. See CSRT
Summary, supra footnote 31.
33 See generally, Maqaleh v. Gates, 604 F. Supp. 2d 205, 226-228 (D.D.C. 2009)(comparing CSRT process with that
employed at Bagram prior to 2009), vacated on other grounds and remanded by 605 F.3d 84 (D.C. Cir. 2010) ; Jeff A.
Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, ARMY LAW., Jun. 2010, at
9 (discussing evolution of the detainee review process used by the United States in Afghanistan); Letter from Phillip
Carter, Dep. Asst. Sec. Defense for Detainee Policy, to Sen. Carl Levin, Chairman of Sen. Armed Serv. Comm., July
14, 2009, available at http://www.scotusblog.com/wp/wp-content/uploads/2009/09/US-Bagram-brief-9-14-09.pdf
(discussing 2009 modifications to the status review process employed with respect to persons held by the United States
at Bagram).
34 Boumediene v. Bush, 553 U.S. 723 (2008).
35 See Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (holding that, at least as a general matter, the constitutional writ
of habeas does not extend to non-citizens detained in the Afghan theater of war).
36 Karen DeYoung and Peter Finn, “New Review System Will Give Afghan Prisoners More Rights,” Washington Post,
(continued...)
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apply at the new detention facility in Parwan.37 It is unclear what process has been used to
determine the status of persons captured in connection with the hostilities who were not
transported to any of those facilities.38
On March 7, 2011, President Obama issued Executive Order 13567, establishing a process for the
periodic review of the continued detention of persons currently held at Guantanamo who have
either been (1) designated for preventive detention under the laws of war or (2) referred for
criminal prosecution, but have not been convicted of a crime and do not have formal charges
pending against them.39 The Executive Order establishes a Periodic Review Board (PRB) to
assess whether the continued detention of a covered individual is warranted in order “to protect
against a significant threat to the security of the United States.” In instances where a person’s
continued detention is not deemed warranted, the Secretaries of State and Defense are designated
responsibility “for ensuring that vigorous efforts are undertaken to identify a suitable transfer
location for any such detainee, outside of the United States, consistent with the national security
and foreign policy interests of the United States” and relevant legal requirements. An initial
review of each individual covered by the Order, which involves a hearing before the PRB in
which the detainee and his representative may challenge the government’s basis for his continued
detention and introduce evidence on his own behalf, must occur within a year of the Order’s
issuance. Those persons deemed to be subject to continued detention will have their cases
reviewed periodically thereafter. The Order also specifies that the process it establishes is
discretionary; does not create any additional basis for detention authority or modify the scope of
authority granted under existing law; and is not intended to affect federal courts’ jurisdiction to
determine the legality of a person’s continued detention.
“Recidivism” and Restrictions on Transfer
Concerns that detainees released from Guantanamo to their home country or resettled elsewhere
have subsequently engaged in terrorist activity have spurred Congress to place limits on detainee
transfers, generally requiring a certification that adequate measures are put in place in the
destination country to prevent transferees from “returning to the battlefield.”40 Statistics regarding
the post-release activities of Guantanamo detainees have been somewhat elusive, however, with
much of the information remaining classified. It does not appear to be disputed that some
(...continued)
September 13, 2009. The new system reportedly gave the detainees certain rights that were unavailable to detainees
subject to the “Unlawful Enemy Combatant Review Board” established in 2007, including a limited right to call
witnesses and examine government information, and a right to have the assistance of a personal military representative.
37 See Daniel, supra footnote 5.
38 Admiral McRaven, discussing this issue at his confirmation hearing for command of SOCOM, noted that
Guantanamo is “off the table” as a prospective destination for persons newly captured in hostilities against Al Qaeda,
and that sovereignty issues make it unlikely that persons captured outside Afghanistan will be transferred to Parwan for
detention. See McRaven Testimony, supra footnote 6. Admiral McRaven indicated that captures outside a theater of
operations like Iraq or Afghanistan are treated on a case-by-case basis, with detainees sometimes kept on board a naval
vessel until a decision is made, id. at 37, but did not indicate what if any process is used to determine the detainee’s
status as subject to detention under the AUMF in the first place.
39 Exec. Order No. 13,567, “Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to
Authorization to Use Military Force,” 76 Fed. Reg. 13,277 (March 10, 2011) [hereinafter “Executive Order on Periodic
Review”].
40 For an overview of restrictions, see CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the
111th Congress, by Michael John Garcia.
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detainees have engaged in terrorist activities of some kind after their release from Guantanamo,
but the significance of such activity has been subject to debate. The policy implications of the
reported activities have also been the subject of controversy, with some arguing that virtually
none of the remaining prisoners should be transferred and others arguing that long-term detention
without trial of such persons is fundamentally unfair.
In 2007, the Pentagon issued a news release estimating that 30 former detainees had since their
release engaged in militant activities or “anti-U.S. propaganda” (apparently including public
criticism of U.S. detention policies).41 This number and others released by DOD officials were
challenged by researchers at Seton Hall University School of Law Center for Policy and Research
who, in connection with advocacy on behalf of some Guantanamo detainees pursuing habeas
cases, identified what they viewed as discrepancies in DOD data as well as a lack of identifying
information that would enable independent verification of the numbers.42 Moreover, they took
issue with the Pentagon’s assertion that the former detainees’ activities could be classified as
“recidivism” or “reengagement,” inasmuch as data released by the Pentagon from CSRT hearings
did not establish in each case that the detainee had engaged in terrorist or insurgent activity in the
first place, and suggested that post-release terrorist conduct could potentially be explained by
radicalization during internment. The study did note that available data confirmed some cases of
individuals who engaged in deadly activities such as suicide bombings after leaving Guantanamo
In 2008, the Defense Intelligence Agency (DIA) reported that 36 ex-Guantanamo detainees were
confirmed or suspected of having returned to terrorism.43 In 2009, the Pentagon reported that one
in seven, or 74 of the 534 prisoners transferred from Guantanamo were believed to have
subsequently engaged in terrorism or militant activity.44
The Intelligence Authorization Act for FY2010 (P.L. 111-259), which was enacted in October
2010, required the Director of National Intelligence (DNI) to make publicly available an
unclassified summary of intelligence relating to recidivism rates of current or former Guantanamo
detainees, as well as an assessment of the likelihood that such detainees may engage in terrorism
or communicate with terrorist organizations. The report was released in December 2010, and
stated that of the 598 detainees transferred out of Guantanamo, the “Intelligence Community
assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are suspected of reengaging in
41 Department of Defense, “Former Guantanamo Detainees Who Have Returned to the Fight”, news release, July 12,
2007.
42 See Mark Denbeaux et al., The Meaning of “Battlefield”(2007) available at http://law.shu.edu/publications/
guantanamoReports/meaning_of_battlefield_final_121007.pdf; see also Mark Denbeaux et al., Released Guantánamo
Detainees and the Department of Defense: Propaganda by the Numbers? (2009), available at http://law.shu.edu/
publications/guantanamoReports/propaganda_numbers_11509.pdf.
43 Department of Defense, Fact Sheet: Former GTMO Detainee Terrorism Trends (June 13, 2008), available at
http://www.defense.gov/news/d20080613Returntothefightfactsheet.pdf. The factsheet described “confirmed” as being
demonstrated by a “preponderance of evidence,” such as “fingerprints, DNA, conclusive photographic match, or
reliable, verified, or well-corroborated intelligence reporting.” It described “suspected” as “[s]ignificant reporting
indicates a former Defense Department detainee is involved in terrorist activities, and analysis indicates the detainee
most likely is associated with a specific former detainee or unverified or single-source, but plausible, reporting
indicates a specific former detainee is involved in terrorist activities.” (Emphasis in original). The document does not
indicate how many of the total number fell into each category.
44 Elisabeth Bumiller, Later Terror Link Cited for 1 in 7 Freed Detainees, NY TIMES, May 20, 2009, available at
http://www.nytimes.com/2009/05/21/us/politics/21gitmo.html. The report noted that 27 of the former prisoners were
confirmed as having engaged in terrorism, while the remaining 47 were merely suspected of doing so. Id. (editor’s
note).
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terrorist or insurgent activities after transfer.”45 Of the 150 confirmed or suspected recidivist
detainees, the report stated that 13 are dead, 54 are in custody, and 83 remain at large. The
summary also indicated that, of 66 detainees transferred from Guantanamo since the
implementation of Executive Order 13492,46 two are confirmed and three are suspected of
participating in terrorist or insurgent activities.47 The report does not include detainees solely on
the basis of anti-U.S. statements or writings,48 but the accuracy or significance of the numbers has
nevertheless been challenged. The New America Foundation analyzed publicly available
Pentagon reports and other documents and estimated that the actual figure of released detainees
who went on to pose a threat to the United States or its interests is closer to 6 percent.49 Because
the intelligence data forming the basis for the DNI’s report remains classified, it is not possible to
explain the discrepancy between the report’s estimate of detainee recidivism numbers and those
estimates deriving from publicly available sources. At any rate, there seems to be broad
agreement that the number of detainees who engage in activities related to terrorism after their
release has grown.
H.R. 1540: Summary and Analysis of
Detainee Provisions
The following sections summarize subtitle D of title X of H.R. 1540, as passed by the House of
Representatives on May 26, 2011.
Definitions
Sec. 1031 provides that, for purposes of subtitle D, the term “individual detained at Guantanamo”
refers to any individual detained at Guantanamo on or after March 7, 2011, who is not a citizen of
the United States or a member of the U.S. Armed Forces and is “in the custody or under the
effective control of the Department of Defense.” The provision does not expressly limit the term
to those detained under the authority of the AUMF, presumably to ensure that the term covers
detainees held at Guantanamo who, despite having been found by a federal court or
administrative board not to be enemy belligerents who may be detained pursuant to the AUMF,
remain at Guantanamo until such time as their transfer or release to a foreign country may be
45 Office of the Director of National Intelligence, Summary of the Reengagement of Detainees Formerly Held at
Guantanamo Bay, Cuba (December 2010) [hereinafter “DNI Recidivism Summary”], available at http://www.dni.gov/
electronic_reading_room/
120710_Summary_of_the_Reengagement_of_Detainees_Formerly_Held_at_Guantanamo_Bay_Cuba.pdf.
46 Exec. Order No. 13,492, Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and
Closure of Detention Facilities, 74 Fed. Reg. 4,897 (Jan. 22, 2009).
47 DNI Recidivism Summary, supra footnote 45.
48 Id. The assessment defines “terrorist” or “insurgent” activities for its purposes as including planning terrorist
operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a
suicide bombing, financing terrorist operations, recruiting others for terrorist operations, arranging for movement of
individuals involved in terrorist operations, etc.” but not communications on issues not related to terrorist operations or
“writing anti-U.S. books or articles, or making anti-U.S. propaganda statements.” Id.
49 See Peter Bergen, Katherine Tiedemann, and Andrew Lebovich, How Many Gitmo Alumni Take Up Arms?, FOREIGN
POLICY online, Jan. 11, 2011, available at http://www.foreignpolicy.com/articles/2011/01/11/
how_many_gitmo_alumni_take_up_arms.
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effectuated. It is unclear who might fall under the “effective control” of the Department of
Defense (DOD) yet not be in its custody for purposes of the bill. That term may be intended to
cover situations other than immediate physical custody, as might occur if a detainee held at
Guantanamo is technically placed in the custody of another agency while remaining under DOD
supervision.
The term “individual detained at Guantanamo” is defined broadly enough to cover foreign
nationals who are brought to Guantanamo for purposes unrelated to hostilities, including, for
example, any foreign refugees who are interdicted at sea and brought to the Migrant Operations
Center at the Naval Station. There is no indication that the provisions of H.R. 1540 that relate to
Guantanamo detainees were intended to cover foreign refugees,50 so it is possible that executive
authorities will not interpret the term literally to cover such persons.
Military Commissions Act Revision
Sec. 1033 amends the Military Commissions Act of 2009 (MCA) to expressly permit guilty pleas
in capital cases brought before military commissions. As currently written, the MCA clearly
permits the death penalty only in cases where all military commission members present vote to
convict and concur in the sentence of death. This requirement has been interpreted by many as
precluding the imposition of the death penalty in cases where the accused has pled guilty, as there
would have been no vote by commission members as to the defendant’s guilt.
Section 1033 amends the MCA expressly to permit the death penalty in cases where the accused
has pled guilty, so long as military commission panel members vote unanimously to approve the
sentence.51 Sec. 1033 also amends the MCA to address pre-trial agreements, specifically
permitting such agreements to allow for a reduction in the maximum sentence, but not to permit a
sentence of death to be imposed by a military judge alone.52
Affirmation of Armed Conflict; Detention Authority
Section 1034 seeks to clarify the existence of the armed conflict with Al Qaeda and other entities,
identify parties to the conflict, and affirm that the AUMF grants the President the authority to
detain captured belligerents for the duration of hostilities. Specifically, section 1034 “affirms”
that the United States is “engaged in an armed conflict with al-Qaeda, the Taliban, and associated
forces and that those entities continue to pose a threat to the United States and its citizens, both
domestically and abroad.” It further affirms that the President is authorized to use all necessary
force during the armed conflict pursuant to the AUMF.53 Subparagraph (3) states that
50 Certain provisions of H.R. 1540 applicable to “individuals detained at Guantanamo,” including those providing for
the periodic review of an individual’s continued detention (section 1036) and limiting executive discretion to transfer
such persons to foreign countries (section 1040), exclude from their requirements those individuals who have been
ordered released by a federal court. This exception might not be applicable to every foreign refugee who is interdicted
at sea and brought to Guantanamo.
51 H.R. 1540, §1033 (House-passed version) (amending 10 U.S.C. §949m(b)).
52 Id. (amending 10 U.S.C. §949i).
53 The AUMF authorized the President to “use all necessary and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against
the United States by such nations, organizations or persons.” P.L. 107-40, Sept. 18, 2001, 115 Stat. 224, codified at 50
(continued...)
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(3) The current armed conflict includes nations, organizations, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces
that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation,
organization, or person described in subparagraph (A)[.]
Section 1034 further affirms that the President’s authority under the AUMF includes the authority
to detain belligerents, including persons described above, until the termination of hostilities.
This section appears to be the most controversial provision in H.R. 1540. Supporters of the
provision contend that it merely confirms the armed conflict as it has evolved since the enactment
of the 2001 AUMF54 and places Congress’s imprimatur on the executive branch interpretation of
the authority the AUMF conferred by adopting the same phrase the government has put forth in
habeas litigation (and which the U.S. Court of Appeals for the D.C. Circuit has largely
accepted).55 Opponents of the provision view the inclusion of “associated forces” without
reference to the AUMF requirement for a certain nexus to the 9/11 terrorist attacks56 as
authorizing an expansion of the armed conflict to cover any new terrorist group that can be
characterized as associated with Al Qaeda.57
Proponents argue that concerns about the breadth of the proposed language are misplaced, noting
that the AUMF was never expressly limited in terms of geography or time, and that it left the
President considerable discretion to determine the parties against whom to use force. Others view
the apparent removal of the AUMF’s limits on identifying parties to the armed conflict as
significant. Moreover, they note that section 1034 appears to go beyond the executive branch’s
characterization of the conflict by identifying as belligerent parties not only Al Qaeda, the
Taliban, and associated forces who are directly engaged in or substantially supporting hostilities
against the United States (section 1034, subparagraph 3(A)), but also “any nations, organizations,
and persons who have engaged in hostilities or have directly supported hostilities in aid of” those
entities (section 1034, subparagraph 3(B)). On the one hand, the requirement that those entities
described in subparagraph 3(B) engage in or support hostilities seems to require a nexus to armed
hostilities, rather than mere support to an entity described in subparagraph 3(A). On the other
hand, the use of the past tense to describe the requisite conduct (i.e., entities that “have engaged
(...continued)
U.S.C. §1540 note.
54 See Reauthorize the War on Terrorism, WASH. POST, May 18, 2011, at A16, available online at
http://www.washingtonpost.com/opinions/reauthorize-the-war-on-terrorism/2011/05/12/AFyov35G_story.html.
55 See, e.g. Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) (agreeing the AUMF includes authority to detain
persons “who were part of or substantially supported Taliban or al Qaida forces or associated forces that are engaged in
hostilities against the United States or its coalition partners, including any person who has committed a belligerent act
or has directly supported hostilities in aid of such enemy armed forces”).
56 See P.L. 107-10 (authorizing force “against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such
organizations or persons....”).
57 See, e.g., A Conflict Without End, NY TIMES, May 17, 2011, at 26 (opinion page), available at
http://www.nytimes.com/2011/05/17/opinion/17tue1.html?_r=2&partner=rssnyt&emc=rss; Coalition Memo to the
House Committee on Armed Services Regarding a Proposed New Declaration of War, available online at
http://www.aclu.org/files/assets/
Coalition_Memo_to_the_House_Committee_on_Armed_Services_Regarding_a_Proposed_Declaration_of_War.pdf.
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in” or “have directly supported” hostilities by Al Qaeda, the Taliban, or associated forces) could
be read to suggest that entities could be deemed belligerents even if their support for Al Qaeda,
the Taliban, or associated groups occurred prior to September 11, 2001 and involved hostilities
with no effect on the United States. While the purpose of describing the enemy parties to the
armed conflict in paragraph (3) is only expressly tied to the President’s authority to detain persons
for the duration of hostilities in paragraph (4), because it describes persons or entities as
“belligerents” who are included in an armed conflict, it could be construed to apply to targeting
decisions or other operations as well.
The legislative history of H.R. 1540 suggests that section 1034 is not intended to authorize a
significant expansion of the ongoing conflict with Al Qaeda and affiliated organizations, but
instead to reaffirm the current interpretation of the AUMF advanced by the Executive in habeas
litigation involving wartime detainees. The House Armed Services Committee report
accompanying H.R. 1540 describes the intent behind section 1034 as follows:
The committee notes that as the United States nears the tenth anniversary of the attacks on
September 11, 2001, the terrorist threat has evolved as a result of intense military and
diplomatic pressure from the United States and its coalition partners. However, Al Qaeda,
the Taliban, and associated forces still pose a grave threat to U.S. national security. The
Authorization for Use of Military Force necessarily includes the authority to address the
continuing and evolving threat posed by these groups.
The committee supports the Executive Branch’s interpretation of the Authorization for Use
of Military Force, as it was described in a March 13, 2009, filing before the U.S. District
Court for the District of Columbia. While this affirmation is not intended to limit or alter the
President’s existing authority pursuant to the Authorization for Use of Military Force, the
Executive Branch’s March 13, 2009, interpretation remains consistent with the scope of the
authorities provided by Congress.58
If the courts continue to construe the term “associated forces” as they have in the past, to mean
armed organizations fighting alongside the Taliban or Al Qaeda against the United States or
coalition forces, then it does not appear the language in H.R. 1540 section 1034 paragraphs (1)
and (2) would permit the expansion of the authority to use force beyond that already permitted
under the AUMF. However, as the D.C. Circuit noted in Parhat, the word “associated” is not
confined to such a meaning. Congress’s express codification of the language without further
definition could be interpreted to supersede the AUMF as it has been interpreted, in which case
courts might prefer to apply a plain-text interpretation of “associated” rather than the definition
currently advanced by the government in habeas cases.
The language in paragraph (3) likewise echoes the language that has been employed by
Combatant Status Review Tribunals at Guantanamo, which permit the detention of:
an individual who was part of or supporting Taliban or al Qaida forces, or associated forces
that are engaged in hostilities against the United States or its coalition partners. This includes
any person who has committed a belligerent act or has directly supported hostilities in aid of
enemy armed forces.
58 H.Rept. 112-78. The government brief it mentions was likely the brief filed in In re Guantanamo Bay Detainee
Litigation, supra footnote 13.
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However, where these words describe captured individuals who are subject to detention, the
language in paragraph (3) applies also to nations and organizations who are deemed to be part of
the conflict. The differing contexts may result in an altogether different interpretation for the
scope of the conflict.
The White House has stated that it “strongly objects to section 1034,”59 arguing that “in
purporting to affirm the conflict, [section 1034] would effectively recharacterize its scope and
would risk creating confusion regarding applicable standards.”60
Periodic Review of Detention of Persons at Guantanamo
Section 1036 requires the Secretary of Defense to establish a review process for Guantanamo
detainees to determine whether continued military detention is necessary to protect the national
security of the United States. The periodic review process contemplated by Section 1036 is in
many ways similar to the process established earlier this year pursuant to Executive Order
13567,61 but there are notable differences as well. Among other things, the review process
contemplated by section 1036 requires that the initial review panel consist of military officers
rather than senior officials from multiple agencies; imposes more detailed and stringent criteria
for assessing whether an individual’s continued detention is no longer warranted; and limits the
assistance private counsel may provide to detainees.62
Pursuant to section 1036, the Secretary of Defense is required to submit a report to Congress
within 180 days regarding the establishment of a process to periodically review whether the
continued detention of individuals detained at Guantanamo is warranted. The process is to include
a full review every three years of each detainee and a more limited review of each detainee’s files
not less than once a year. The review process does not apply to those individuals held at
Guantanamo who are undergoing trial by military commission or are serving a sentence imposed
by a military commission, or detainees who have been ordered released by a federal court.
A full review may not take place sooner than 21 days after an individual’s arrival at Guantanamo.
The review is to be conducted by a panel made up of military officers with expertise in
operations, intelligence, and counterterrorism matters as well as the appropriate security
clearances. The subject detainee is entitled to be assisted by a “military personal representative”
with the appropriate security clearance, who is to appear before the panel to advocate on the
detainee’s behalf. The detainee is permitted to present to the panel a written or oral statement,
introduce evidence, respond to questions, and call “reasonably available” witnesses who are
willing to provide relevant information as to whether the individual poses a continuing threat to
the United States or its allies. Prior to the hearing, the detainee is to be provided with an
unclassified summary of information the panel will consider, including mitigating information.
The detainee’s personal representative is to be provided with a copy of the government’s
submission prior to the hearing, except that the panel may order a sufficient substitute or
summary of classified information, if deemed necessary to protect national security. Outside
59 White House Statement on H.R. 1540, supra footnote 12, at 2.
60 Id.
61 Executive Order on Periodic Review, supra footnote 39.
62 For further discussion of the periodic review process established by Executive Order 13567, see CRS Report
R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al.
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parties, including the detainee’s private counsel if he hires any, may, if authorized in writing by
the detainee, provide a written submission to the military panel.
The limited annual file review is intended to consider any significant new information regarding
the threat posed by the individual, including mitigating information, which would lead to the
commencement of a full review by a military panel if warranted. In either type of review,
submitting officials are required to provide relevant information that has been presented for
discovery purposes during any military commission case.
In assessing whether a Guantanamo detainee’s continued internment is warranted, the military
panel is charged with making its recommendation based on the totality of circumstances, taking
into consideration certain factors:
• the likelihood the individual will resume terrorist activity if transferred or
released;
• the likelihood the individual will reestablish ties with an organization engaged in
hostilities against the United States or its allies if transferred or released;
• the behavior of the individual while in military custody;
• any information reviewed by the officials preparing the government’s submission
to the panel that tends to mitigate the threat posed by the individual; and
• whether information known to the individual could be of significant intelligence
value to the national security of the United States.
Section 1036 further requires the establishment of an interagency review board, composed of
senior officials of the Department of State, the Department of Defense, the Department of Justice,
the Department of Homeland Security, the Joint Chiefs of Staff, and the Office of the Director of
National Intelligence. The interagency review board is to be responsible for reviewing the
military panel’s full review for clear error. It can reject the recommendation if it disagrees with it
by majority vote. In the event that a military panel recommends a particular detainee should no
longer be detained, the interagency review panel is to identify a suitable country (other than the
United States) where the detainee may safely be transferred, considering a number of factors
based on the country’s status as a supporter of terrorism, its ability to maintain effective control
over any detention facility where the individual may be housed, its ability to prosecute the
individual or otherwise prevent him from engaging in terrorist activities, and whether it has made
assurances regarding the humane treatment of the individual. The criteria used by the interagency
review board is largely identical to that governing Guantanamo transfer decisions established
under section 1040 of the bill, discussed infra.
A rejected recommendation may be returned to the military panel for a reevaluation, or the board
may forward its recommendation to the Secretary of Defense for approval. Whatever the ultimate
decision, the detainee does not have a right to seek redress or enforcement in any U.S. court.
In a written statement regarding H.R. 1540, the White House identified section 1036 as one of
several provisions within the bill which, at least when taken together with other detainee
provisions, could raise the possibility of a presidential veto. It asserted that the periodic review
process established by section 1036
undermines the system of periodic review established by the President’s ... Executive Order
by substituting a rigid system of review that could limit the advice and expertise of critical
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intelligence and law enforcement professionals, undermining the Executive branch’s ability
to ensure that these decisions are informed by all available information and protect the full
spectrum of our national security interests. It also unnecessarily interferes with DOD’s
ability to manage detention operations. 63
Transfer or Release of Wartime Detainees into the United States
Section 1039 generally limits the transfer or release into the United States of non-citizen
detainees held abroad in U.S. military custody.64 The provision bars the use of funds authorized to
the military for FY2012 from being used to transfer or release any individual held at Guantanamo
into the United States. It further prohibits such funds from being used to transfer or release into
the United States any non-citizen detainee held abroad by the Department of Defense pursuant to
the AUMF.
In response to the Obama Administration’s stated plan to close the Guantanamo detention facility,
Congress enacted several funding measures intended to limit Executive discretion to transfer or
release Guantanamo detainees into the United States. Initially, these measures barred detainees
from being released into the United States, but still preserved executive discretion to transfer
detainees into the country for purposes of criminal prosecution.65 However, more recent funding
limitations contained in the Ike Skelton National Defense Authorization Act for FY2011 (2011
NDAA, P.L. 111-383) and the Department of Defense and Full-Year Continuing Appropriations
Act, 2011 (2011 CAA, P.L. 112-10), prohibit the transfer of Guantanamo detainees into the
United States for any purpose, including criminal prosecution.66 These restrictions, which are set
to expire at the end of the 2011 fiscal year, appear to have been motivated in part by the
Administration’s plans to transfer Khalid Sheik Mohammed and several other Guantanamo
detainees to the United States to stand trial in an Article III court. As no civilian court operates at
Guantanamo, the 2011 NDAA and CAA effectively make military commissions the only viable
forum for the criminal prosecution of Guantanamo detainees until the end of FY2011.
The funding restrictions established by section 1039, which apply for the duration of FY2012,
cover a broader category of detainees than the restrictions contained in the 2011 NDAA and
CAA. Like the funding restrictions currently in effect, section 1039 applies to all non-citizen
detainees held at Guantanamo. But unlike current restrictions, section 1039 would also restrict the
transfer or release into the United States of any non-citizen detainees held by military authorities
pursuant to the AUMF at foreign locations other than Guantanamo.
Section 1039 appears to establish less stringent restrictions on the transfer of Guantanamo
detainees into the United States than the 2011 NDAA and CAA. The restrictions imposed by H.R.
1540 only prevent the DOD from transferring or releasing a wartime detainee into the United
States, but would not appear to limit detainees from being brought into the country by another
government agency. In contrast, the 2011 NDAA not only prohibits military funds from being
used either to transfer or release Guantanamo detainees into the United States, but also bars such
funds from being used to assist in the transfer or release of such persons. Because Guantanamo
63 White House Statement on H.R. 1540, supra footnote 12, at 2-3.
64 The restriction also generally precludes the transfer or release of detainees to U.S. territories or possessions.
65 For further discussion of these limitations, see CRS Report R40754, Guantanamo Detention Center: Legislative
Activity in the 111th Congress, by Michael John Garcia.
66 2011 NDAA, P.L. 111-383, §1032; 2011 CAA, P.L. 111-383, §1112.
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detainees are currently in military custody, the 2011 NDAA appears to effectively bar the transfer
of any Guantanamo detainee into the country for the duration of the 2011 fiscal ear.67 Moreover,
the 2011 CAA bars funds made available by it or any other act from being used by any
government agency to transfer or release, or assist in the transfer or release, of a Guantanamo
detainee into the United States.68 It should be noted that while the restriction on detainee transfers
contained in section 1039 does not appear to be as rigid as the restrictions contained in the 2011
NDAA and CAA, other provisions of H.R. 1540, including its general bar on the prosecution of
enemy belligerents for terrorist offenses in Article III court (section 1046, discussed infra), may
eliminate the primary incentive for transferring wartime detainees into the country.
The White House has expressed strong objection to section 1039.69 While stating its opposition to
the release of detainees into the United States, the Obama Administration claims that the measure
unduly interferes with executive discretion to prosecute detainees in an Article III court located in
the United States. According to a White House statement, section 1039:
is a dangerous and unprecedented challenge to critical Executive branch authority to
determine when and where to prosecute detainees, based on the facts and the circumstances
of each case and our national security interests. It unnecessarily constrains our Nation’s
counterterrorism efforts and would undermine our national security, particularly where our
Federal courts are the best – or even the only – option for incapacitating dangerous
terrorists.70
While not directly limiting the transfer or release of detainees into the United States, section 1037
of H.R. 1540 prohibits the use of any funds made available to the Department of Defense for
FY2012 to construct or modify any facility in the United States, its territories, or possessions to
house an individual detained at Guantanamo for “detention or imprisonment in the custody or
under the control of the Department of Defense.” Substantially similar restrictions were included
in 2011 NDAA and CAA, but these limitations did not apply to funds appropriated or authorized
to be appropriated for FY2012.71
Transfer or Release of Guantanamo Detainees to Foreign Countries
Section 1040 limits funds made available to the DOD for the 2012 fiscal year from being used to
transfer or release of Guantanamo detainees to foreign countries or entities, except when certain
criteria are met. These limitations do not apply in cases where a Guantanamo detainee is
transferred or released to effectuate a court order (i.e., when a habeas court finds that a detainee is
67 See CRS Report R40754, Guantanamo Detention Center: Legislative Activity in the 111th Congress, by Michael John
Garcia (discussing legislative history of the 2011 NDAA, and noting statements by Members reflecting an
understanding that it constituted a complete prohibition on the transfer of Guantanamo detainees into the country).
68 2011 CAA, P.L. 111-383, §1112.
69 Upon signing the 2011 NDAA and CAA into law, President Obama issued statements expressing his disapproval of
the restrictions they imposed upon executive discretion to bring detainees into the country for trial before an Article III
court. White House Office of the Press Secretary, Statement by the President on H.R. 6523, January 7, 2011, available
at http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523; White House Office of the
Press Secretary, Statement by the President on H.R. 1473, April 15, 2011, available at http://www.whitehouse.gov/the-
press-office/2011/04/15/statement-president-hr-1473.
70 White House Statement on H.R. 1540, supra footnote 12, at 2.
71 2011 NDAA, P.L. 111-383, §1034 (restricting use of funds which it authorized to be appropriated); 2011 CAA, P.L.
111-383, §1114 (restricting the use of any funds that it or any prior act appropriated or otherwise made available).
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not subject to detention under the AUMF and orders the government to effectuate his release from
custody). The restrictions established by section 1040 largely mirror those contained in the 2011
NDAA and 2011 CAA, most of which are set to expire at the end of the 2011 fiscal year,72 and
appear motivated by congressional concern over possible recidivism by detainees released from
U.S. custody.73 Supporters of these funding restrictions argue that they significantly reduce the
chance that a detainee will reengage in terrorist activity if released from U.S. custody, while
critics argue that they are overly stringent and hamper the Executive’s ability to transfer even
low-risk detainees from U.S. custody. In any event, no Guantanamo detainee has been transferred
or released from U.S. custody since the 2011 NDAA and CAA went into effect, though the degree
to which these restrictions are responsible for the lack of subsequent detainee transfers is unclear.
Under the requirements of section 1039, in order for a transfer to occur, the Secretary of Defense
must first certify to Congress that the destination country or entity
• is not a designated state sponsor of terrorism or terrorist organization;
• maintains effective control over each detention facility where a transferred
detainee may be housed;
• is not facing a threat likely to substantially affect its ability to control a
transferred detainee;
• has agreed to take effective steps to ensure that the transferred person does not
pose a future threat to the United States, its citizens, or its allies;
• has agreed to take such steps as the Secretary deems necessary to prevent the
detainee from engaging in terrorism;
• has agreed to share relevant information with the United States related to the
transferred detainee that may affect the security of the United States, its citizens,
or its allies; and
• has agreed to allow appropriate agencies of the United States to have access to
the individual, if requested.
These requirements are substantively identical to those that the interagency review board
established pursuant to section 1036 are required to consider when determining whether a
Guantanamo detainee’s continued detention is warranted. Moreover, the certification
requirements virtually mirror those contained in the 2011 NDAA and CAA,74 except that section
1040 establishes an additional requirement that the receiving foreign entity agree to permit U.S.
authorities to have access to the transferred individual.
72 Most of the applicable restrictions on detainee transfers contained in the 2011 NDAA and CAA concern funds made
available for FY2011 (which ends on September 30, 2011). However, the 2011 NDAA’s prohibition on the transfer of
detainees to any country where there has been a confirmed case of recidivism by a previously transferred detainee
expires in January 2012. 2011 NDAA, P.L. 111-383, §1333(c) (specifying that prohibition lasts for a one-year period
beginning on the date of enactment).
73 The DNI reported in December 2010 that 13.5 percent of released Guantanamo detainees are “confirmed” and 11.5
percent “are suspected” of “reengaging in terrorist or insurgent activities after transfer.” See DNI Recidivism Summary,
supra footnote 45.
74 2011 NDAA, P.L. 111-383, §1033; 2011 CAA, P.L. 112-10, §1013.
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Like the 2011 NDAA and CAA, section 1040 also generally prohibits funds from being used to
transfer a Guantanamo detainee to the custody or control of a foreign government or entity if
there is a confirmed case that a former Guantanamo detainee who was transferred to that
government or entity subsequently engaged in terrorist activity.
The White House has expressed disapproval of the restrictions on detainee transfers established
by section 1040. It claims that the provision’s certification requirements unduly interfere with the
Executive’s ability “to make important foreign policy and national security determinations
regarding whether and under what circumstances such transfers should occur. The Administration
must have the ability to act swiftly and to have broad flexibility in conducting its negotiations
with foreign countries.”75
Other Guantanamo-Related Provisions
Section 1035 requires the Secretary of Defense to submit a detailed “national security protocol”
pertaining to the communications of each “individual detained at Guantanamo” (defined in
section 1031, discussed supra) within 90 days of enactment. The protocol is required to describe
an array of limitations or privileges applicable to each detainee regarding access to military or
civilian legal representation, communications with counsel or any other person, receipt of
information, possession of contraband and the like, as well as applicable enforcement measures.
The provision specifically requires a description of monitoring procedures for legal materials or
communications for the protection of national security while also preserving the detainee’s
privilege to protect such materials and communications in connection with a military commission
trial or habeas proceeding.
Section 1038 prohibits DOD funds made available in FY2012 from being used to permit family
members of Guantanamo detainees to visit them there.
Section 1043 prohibits Guantanamo detainees who are “repatriated” to the Federated States of
Micronesia, the Republic of Palau, or the Republic of the Marshall Islands from being afforded
the rights and benefits set forth in the Compact of Free Association. The Compact provides
certain rights and benefits to citizens of these countries which may, among other things, facilitate
their travel to the United States. It should be noted that repatriation is commonly understood to
refer to the return of a person back to his or her home country. Accordingly, this provision would
not appear to apply to any former Guantanamo detainee who was resettled in one of the countries
listed above (i.e., the Chinese ethnic Uighur detainees who were resettled in Palau), though such
persons may be effectively barred from travelling to the United States under existing laws.76
However, section 1043 would apply to any citizen of Micronesia, Palau, or the Marshall Islands
who was detained at Guantanamo and thereafter returned to his country of origin.
75 White House Statement on H.R. 1540, supra footnote 12, at 2.
76 The Department of Homeland Security Appropriations Act, 2010 (P.L. 111-83) and Consolidated Appropriations
Act, 2010 (P.L. 111-117) appeared to generally bar the funds they appropriated from being used to grant an
“immigration benefit,” including a visa to enter the United States, to a person who has been detained at Guantanamo.
These funding restrictions were extended for the duration of FY2011 pursuant to the terms of the 2011 CAA. See P.L.
112-10, Div. B. See also 8 U.S.C. §1182 (grounds for exclusion of aliens seeking entry into the United States); 49
U.S.C. §44903(j) (placing former Guantanamo detainees on the No Fly List, unless the President certifies to Congress
that the detainee poses no threat to the United States, its citizens, or its allies).
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Terrorism Trials
Section 1042 requires consultation among the Attorney General, Deputy Attorney General, or
Assistant Attorney General for the Criminal Division, and the Director of National Intelligence
and the Secretary of Defense prior to the initiation of any prosecution of a non-citizen for an
offense for which the defendant could be tried by military commission. The consultation is to
involve a discussion of whether the prosecution should take place in a U.S. district court or before
a military commission, and whether the individual should be transferred into military custody for
purposes of intelligence interviews. This is not a provision that has appeared in previous defense
authorization bills. The White House has expressed opposition to this provision. It claims that
robust interagency coordination already exists between federal agencies in terrorism-related
prosecutions, and asserts that section 1042 “would undermine, rather than enhance, this
coordination by requiring institutions to assume unfamiliar roles and could cause delays in taking
into custody individuals who pose imminent threats to the nation’s safety. “77
Section 1046 provides that any foreign national who has engaged in certain terrorism-related
conduct must be tried only by military commission for such offense. The provision applies to any
foreign national who
(1) engages or has engaged in conduct constituting an offense relating to a terrorist attack
against persons or property in the United States or against any United States Government
property or personnel outside the United States; and
(2) is subject to trial for that offense by a military commission under chapter 47A of title 10,
United States Code[.]
The provision does not define its terms. While the provision applies to “an offense relating to”
either a terrorist attack within the United States or against U.S. government property or personnel
abroad, it is not clear whether the provision would apply to prospective attacks that are never
consummated. What qualifies as a “terrorist attack,” as opposed to another act of violence, is not
clarified. Applying the language to a case such as that of Umar Farouk Abdulmutallab, the
Nigerian suspect accused of trying to destroy an airliner traveling from Amsterdam to Detroit on
Christmas Day 2009, may be instructive. Assuming that the provision applies to failed attacks, an
attempt to destroy an aircraft, for example, might be covered if the attack can be said to have
taken place within the United States. If the “attack” takes place in international airspace or the
airspace of another country, it would apparently be necessary to demonstrate that U.S.
government property or personnel were on board.
Assuming that these criteria were met, it would then need to be established that the “offense”
related to the “attack” is also one that can be tried by military commission pursuant to the MCA,
and that the accused is subject to the jurisdiction of such a military commission. The attempted
use of an explosive device to bring down a civilian aircraft seems amenable to prosecution under
a number of criminal prohibitions over which military commissions have jurisdiction.78 In order
for jurisdiction to exist, however, it must also be demonstrated the offense was “committed in the
context of and associated with hostilities.”79 “Hostilities,” in turn, is defined by the MCA to mean
77 White House Statement on H.R. 1540, supra footnote 12, at 3.
78 See 10 U.S.C. §950t (listing crimes triable by a military commission, including murder of protected persons,
attacking civilians or civilian objects, attacking protected property, hazarding an aircraft, or terrorism).
79 10 U.S.C. §950p(c).
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“any conflict subject to the laws of war.”80 Accordingly, it appears that at least some connection
between the accused and the forces opposing the United States in an armed conflict would have to
be established for section 1042 to apply. 81
In order for a military commission to exercise jurisdiction over an accused, it must be established
that he is not a citizen of the United States and is an unprivileged enemy belligerent, which is
defined to exclude a person who qualifies for prisoner of war status under the Third Geneva
Convention82 in an international armed conflict, but to cover any other person who
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States or its
coalition partners; or
(C) was part of al Qaeda at the time of the alleged offense.…83
If the offense is deemed to be sufficiently associated with hostilities, it seems that the accused
would by definition qualify as an unprivileged enemy belligerent.84 The bill does not explain how
any of these criteria are to be determined. Military commissions have jurisdiction to make their
own jurisdictional determinations,85 but an Article III court exercising habeas jurisdiction could
also determine whether an accused qualifies for treatment under the provision.
How the bill might affect the more typical material support case or other cases involving
terrorism charges is difficult to predict. The provision appears to apply to all foreign nationals
80 10 U.S.C. §948a(9).
81 Military commissions established pursuant to the MCA are not statutorily limited in their application solely to the
conflict authorized under the AUMF. It is possible that commissions could be employed to try unprivileged enemy
belligerents in other armed conflicts.
82 The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, art.4 (6 U.S.T. 3317). The
eight categories of persons entitled to protected status are
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps
forming part of such armed forces.
2. Members of other militias and other volunteer corps that belong to a Party to the conflict that: are commanded
by a person responsible for his subordinates, have a “fixed distinctive sign” identifying them as combatants, carry
arms openly, and conduct themselves in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or authority not recognized by the
Detaining Power.
4. Properly authorized persons who accompany the armed forces without actually being members thereof,
including, war correspondents, supply contractors and the like.
5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil
aircraft of the Parties to the conflict.
6. Inhabitants of a non-occupied territory who spontaneously resist invading forces, provided they carry arms
openly and respect the laws and customs of war.
7. Certain interned members and former members of the armed forces of an occupied country.
8. Certain detainees in the hands of neutral or non-belligerent.
83 10 U.S.C. §948a (6) & (7); §948d.
84 Whether or under what circumstances the activities of a terrorist organization might be considered to implicate
international humanitarian law (“law of war”) is subject to continuing debate, particularly outside the United States, but
is beyond the scope of this report.
85 10 U.S.C. §948d.
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who have engaged in relevant conduct, although presumably it can only plausibly be read to
cover those foreign nationals in U.S. custody. The provision could complicate efforts to extradite
terrorism suspects from abroad, or to try those who have already been extradited. As noted above,
the provision might be construed as limited to cases where an actual qualifying terrorist attack is
carried out, in which case it would not apply to foreign nationals arrested in sting operations. The
provision does not appear to require that any agency of the government take any action with
respect to foreign nationals in custody to determine whether they are subject to the provision,
unless section 1042, discussed supra, is read to serve that purpose, but such a determination may
be subject to habeas challenge, at least in the case of foreign nationals in the United States. On the
other hand, the bill does not outright preclude trials in Article III courts for the individuals it
describes, nor does it require a military commission trial; it merely states that the individuals shall
only be tried for certain offenses in military commissions. If “offense” is understood by reference
to the statute defining its elements, the operation of the provision may be avoidable simply by
framing the offense as one under a terrorism-related provision of title 18, U.S. Code rather than
one that is subject to the jurisdiction of a military commission. This reading is supported by
section 1042, which appears to contemplate broader discretion among the executive branch
officials over prosecutorial decisions than section 1046 appears to permit. In the event a federal
criminal offense is charged, however, a defendant could challenge the Article III court’s
jurisdiction based on the language of the provision. If the court were to agree and there is some
impediment to trial before a military commission,86 for example, in a situation where the
defendant has been extradited from a foreign country that has not given its permission for a trial
by a military court, a criminal trial may not be possible.
When the White House issued its statement regarding H.R. 1540, the bill had not yet been
amended to add section 1046. However, the statement’s general criticism of aspects of the bill
restricting executive discretion to choose the forum in which to prosecute detainees would appear
applicable.
General Counterterrorism Matters
Sec. 1032 extends for two years the authority to make rewards up to $5 million to individuals
who provide information or non-lethal assistance to the U.S. government or an ally in connection
with a military operation outside the United States against international terrorism or to assist with
force protection.87 The original authority is set to expire on September 30, 2011. The provision
also moves the related annual reporting requirement to February rather than December.
Section 1041 requires the Secretary of Defense to provide to the congressional defense
committees quarterly briefings outlining global Department of Defense counterterrorism
operations, expressly including “an overview of authorities and legal issues including
limitations.”
Section 1044 provides a sense of the Congress approving DOD anti-terrorism efforts and
pledging congressional support for future efforts.
86 We read “foreign national … subject to trial for that offense by military commission” to mean that subject matter
jurisdiction exists for military commission trial, but not to incorporate other matters particular to an individual case.
87 10 U.S.C. §127b.
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Section 1045 addresses the perceived need for improved interagency strategic planning for
measures to deny safe havens to Al Qaeda and affiliated groups and to strengthen “at-risk states.”
It requires the President to issue planning guidance identifying and analyzing geographic areas of
concern and to provide a set of goals for each area and a description of various agency roles as
well as gaps in U.S. capabilities that may have to be filled through coordination with other
entities. In addition to reviewing and updating the guidance as necessary, the President is required
to submit to Congress copies of each guidance document within 15 days after it is completed or
updated. The provision also requires agencies involved in carrying out the guidance to enter into a
memorandum of understanding covering a list of criteria.
S. 1253: Summary and Analysis of
Detainee Provisions
The Senate bill S. 1253, as reported out of the Armed Services Committee, covers “Detainee
Matters” in subtitle D of Title X.
Detention Authority
Section 1031 provides that the U.S. Armed Forces are authorized to detain “covered persons”
captured during hostilities authorized by the AUMF as unprivileged enemy belligerents pending
disposition under the law of war. Combining the express language of the AUMF with the
language the Obama Administration has employed to describe its detention authority in habeas
litigation involving Guantanamo detainees,88 of the bill defines “covered persons” in section
1031(b):
(b) Covered Persons- A covered person under this section is any person, including but not
limited to persons for whom detention is required under section 1032, as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or
associated forces that are engaged in hostilities against the United States or its coalition
partners, including any person who has committed a belligerent act or has directly supported
such hostilities in aid of such enemy forces.
It states that dispositions under the law of war “may include” several options:
• long-term detention without trial until the end of hostilities against entities
subject to the 2001 AUMF;
• trial by military commission;
• transfer for trial by another court or tribunal with jurisdiction;
• or transfer to the custody or control of a foreign country or foreign entity.
88 See supra, discussion in “Scope of Detention Authority Conferred by the AUMF.”
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The provision uses the language “may include” with respect to the above options, which could be
read as permission to add other options or negate any of the listed options.
Section 1031 does not exclude U.S. citizens or lawful resident aliens from its coverage, but states
that the provision authorizes their detention on the basis of conduct occurring within the United
States only to the extent permitted by the Constitution.89
Unlike the House bill, S. 1253 does not expressly reaffirm the existence of the armed conflict
under the AUMF or explicitly define its scope. Instead, it provides for express detention authority
in terms already asserted by the Administration, and appears intended to provide a clear statutory
basis for the Administration’s position. According to the Senate Armed Service Committee report
accompanying the Senate bill:
The committee recognizes that the Armed Forces of the United States do not need specific
statutory authorization to detain enemy belligerents under the law of war when they are
captured in the course of any lawful armed conflict. Because the long-term nature of the
current conflict has led to the detention of a number of individuals for a period that is not
likely to end soon, the committee concludes that such statutory authorization is appropriate
in this case.90
In restating the definitional standard the Administration uses to characterize its detention
authority, section 1031 does not attempt to provide additional clarification for terms such as
“substantial support,” “associated forces,” or “hostilities.” For that reason, it may be subject to an
evolving interpretation that effectively permits a broadening of the scope of the conflict.
Mandatory Military Detention
Section 1032 generally requires at least temporary military custody for Al Qaeda members and
members of “affiliated entities” who are taken into the custody or brought under the control of the
United States on or after the date of enactment. This provision does not apply to all person who
are permitted to be detained as “covered persons” under section 1031. In particular, the
mandatory detention requirement in section 1032 excludes U.S. citizens from its purview,
although it apparently remains applicable to U.S. resident aliens. The requirement applies as
follows:
89 There is continuing uncertainty regarding when and whether U.S. persons may be deemed enemy belligerents on
account of domestic conduct. In al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), the U.S. Court of Appeals for the
Fourth Circuit sitting en banc considered whether the AUMF and the law of war permit the detention of a resident alien
alleged to have engaged in activities within the United States in support of Al Qaeda, but who had not been part of the
conflict in Afghanistan. Four of the nine judges would have held that even if the allegations were true, al-Marri did not
constitute an “enemy combatant” and that the government could continue to hold him only if it charged him with a
crime, commenced deportation proceedings, or obtained a material witness warrant in connection with grand jury
proceedings (as a majority of an earlier three-judge appellate panel had found). A plurality of the fractured court,
however, found that the AUMF and the law of war give the President the power to detain persons who enter the United
States as “sleeper agents” on behalf of Al Qaeda for the purpose of committing hostile and war-like acts such as those
carried out on 9/11. The Supreme Court agreed to hear an appeal of the circuit ruling, but prior to considering the
merits of the case, the government brought charges in civilian court against al-Marri for providing material support to
Al Qaeda. The government immediately requested that the Supreme Court dismiss al-Marri’s pending case and
authorize his transfer from military to civilian custody for criminal trial. The Supreme Court granted the government’s
application, vacated the Fourth Circuit’s judgment, and remanded the case back to the appellate court with instructions
to dismiss the case as moot. al-Marri v. Spagone, 129 S.Ct. 1545 (2009).
90 S.Rept. 112-26, at 176.
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(2) APPLICABILITY TO AL-QAEDA AND AFFILIATED ENTITIES- The requirement in
paragraph (1) shall apply to any covered person under section 1031(b) who is determined to
be—
(A) a member of, or part of, al-Qaeda or an affiliated entity; and
(B) a participant in the course of planning or carrying out an attack or attempted attack
against the United States or its coalition partners.
Persons described above are required to be detained by military authorities pending “disposition
under the law of war,” as defined in section 1031, except that additional requirements must first
be met before the detainee can be transferred. Accordingly, such persons may (1) be held in
military detention until hostilities under the AUMF are terminated; (2) be tried before a military
commission; (3) be transferred from military custody for trial by another court having
jurisdiction; or (4) be transferred to the custody of a foreign government or entity, provided the
transfer requirements established in section 1033 of the bill, 91discussed infra, are satisfied.
Although section 1032 provides some general parameters for its mandatory detention
requirements, it does not define them with specificity. This may allow some degree of executive
discretion in assessing whether an individual falls under the purview of section 1032. For
example, the provision does not supply criteria for assessing whether an organization is “an
affiliated entity” of Al Qaeda. 92 Arguably, this provision might discourage the Executive from
designating a particular group as an “affiliated entity” because military detention would then be
required for all of the group’s members. The omission of any express reference to the Taliban in
section 1032 seems to indicate that it need not be treated as an entity affiliated with Al Qaeda,
although this interpretation would not conform with the Administration’s present use of the term
“affiliate,” which it apparently uses to describe an even wider population than “associated
forces.”93 Section 1032 would not apply to a “lone wolf” terrorist with no ties to Al Qaeda or an
affiliated group.
91 Section 1032 provides that persons subject to mandatory detention may be transferred to foreign countries only so
long as such transfers are “consistent with the requirements of section 1033” of the bill, which bars the transfer of
Guantanamo detainees to foreign countries unless certain certification requirements are met. Arguably, the interplay
between these two provisions could be read to mean that no person subject to the mandatory detention requirement of
section 1032 may be transferred a foreign country unless the Secretary of Defense certifies that the transfer complies
with the criteria described under section 1033, regardless of the current location of the person’s detention. On the other
hand, it is possible that the certification requirement is only intended to apply to those persons who are subject to
mandatory detention under section 1032 who are also currently being held at Guantanamo. See also infra text
accompanying footnote 94 (noting potential implications for the capture of suspected Al Qaeda members during U.S.
operations in Iraq or Afghanistan).
92 The recently released 2011 National Strategy for Counterterrorism (“2011 Strategy”), http://www.whitehouse.gov/
sites/default/files/counterterrorism_strategy.pdf distinguishes between “affiliates,” which are defined as “groups that
have aligned with” Al Qaeda, and “adherents,” which are “individuals who have formed collaborative relationships
with, act on behalf of, or are otherwise inspired to take action in furtherance of the goals of al-Qa‘ida—the organization
and the ideology—including by engaging in violence regardless of whether such violence is targeted at the United
States, its citizens, or its interests.” 2011 Strategy at 3.
93 The 2011 Strategy distinguishes “affiliates” from “associated forces”:
Affiliates is not a legal term of art. Although it includes Associated Forces, it additionally includes
groups and individuals against whom the United States is not authorized to use force based on the
authorities granted by the [AUMF]. The use of Affiliates in this strategy is intended to reflect a
broader category of entities against whom the United States must bring various elements of national
power, as appropriate and consistent with the law, to counter the threat they pose. Associated
Forces is a legal term of art that refers to cobelligerents of al-Qa‘ida or the Taliban against whom
(continued...)
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What conduct constitutes an “attack ... against the United States coalition partners” is not further
clarified. It could be read to cover only the kinds of attacks carried out in a military theater of
operations against armed forces, where the law of war is generally understood to permit the
military detention of such persons. On the other hand, the term “attack” might be interpreted to
apply more broadly to cover terrorist acts directed against civilian targets elsewhere, although the
application of the law of war to such circumstances is much less certain. It is unclear whether an
effort to bring down a civilian airliner, for example, necessarily constitutes an “attack against the
United States.” Because the mandatory detention requirement is related to hostilities authorized
by the AUMF, it would not apply to insurgents who carry out attacks against U.S. or coalition
targets in Iraq (though it might be argued that the provision would apply to any perpetrators
believed to be members of Al Qaeda or an affiliated group).94
It appears that the Department of Defense has the responsibility for determining whether a person
falls under a category that is subject to military detention. Section 1036 (discussed more fully
infra) requires DOD to submit to Congress procedures for status determination of “persons
captured in the course of hostilities authorized by the AUMF” for purposes of section 1031. This
language could be interpreted to mean that only those who are captured by the military during
military operations are meant to be subject to detention under section 1031,95 and by extension, to
the mandatory detention requirement in section 1032. On the other hand, it could be interpreted
merely to leave open the means by which other agencies are to determine whether individuals in
their custody are subject to detention under sections 1031 and 1032. Whatever process is adopted
to make such an initial determination would likely implicate constitutional due process
requirements, at least if the detainee is located within the United States, and would likely be
subject to challenge by means of habeas corpus.96 The provision does not prevent Article III trials
of covered persons, although any time spent in military custody could complicate the prosecution
of a covered defendant.97
(...continued)
the President is authorized to use force (including the authority to detain) based on the [AUMF]
Id. at note 1.
94 Under present practice, such persons would likely be detained and turned over to the Iraqi government for
prosecution. Depending upon how the requirements of section 1032 are interpreted, it could arguably impede the
transfer to Iraq authorities of any insurgent believed to be part of Al Qaeda, potentially hampering U.S.-Iraq relations.
See supra text accompanying footnote 91 (discussing interplay between section 1032 and section 1039 of the Senate
bill). The application of the provision in Afghanistan may have similar implications as the United States seeks to turn
over detention operations to the Afghan government. See Daniel, supra footnote 5 (describing detention procedures in
Afghanistan).
95 Section 1031 also refers to the authority to detain persons “captured in the course of hostilities authorized by the
Authorization for Use of Military Force,” which could be interpreted to limit its application to military captures and not
civilian arrests.
96 The ability of a detainee to bring a habeas petition under section 1036 may depend upon his location. Compare
Boumediene v. Bush, 553 U.S. 723 (2008) (constitutional writ of habeas extends to non-citizen detainees held at
Guantanamo) with Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (writ of habeas does not presently extend to non-
citizen detainees held by the United States in Afghanistan).
97 There has been one case of an individual who was transferred from Guantanamo to the United States for prosecution
on terrorism charges. Ahmed Khalfan Ghailani was indicted in 1998 and charged with conspiracy in connection with
the bombing of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. He was arrested in
Pakistan in 2004 and turned over to U.S. custody to be held and interrogated by Central Intelligence Agency (CIA)
officials. In 2006, he was transferred to DOD custody and held as an enemy combatant at Guantanamo. He was
transferred to the Southern District of New York for trial in 2009, and was subsequently convicted and sentenced to life
imprisonment, despite his efforts to quash the prosecution on numerous grounds related to his detention. For more
information, see CRS Report R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court
(continued...)
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Transfer or Release of Guantanamo Detainees to Foreign Countries
Section 1033 establishes a permanent restriction upon the use of military funds to transfer or
release Guantanamo detainees to foreign countries or entities, except when certain criteria are
met. These restrictions are largely similar to those contained in the 2011 NDAA, which are
generally set to expire at the end of the 2011 fiscal year,98 as well as those found in H.R. 1540,
which would only apply to funds authorized for FY2012.
Section 1033 would generally prohibit the expenditure of DOD funds for any detainee transfer
from Guantanamo to a foreign country unless Congress has received, not later than 30 days prior
to the transfer, a certification by the Secretary of Defense, with the concurrence of the Secretary
of State and in consultation with the Director of National Intelligence, that the destination country
or entity
• is not a designated state sponsor of terrorism or a designated foreign terrorist
organization;
• maintains control over any detention facility where the individual is to be housed;
• is not facing a substantial threat to its ability to exercise control over the
individual;
• has taken or agreed to take effective measures to avert any threat the individual
may pose to the United States, its citizens, or its allies;
• has taken or agreed to take such actions as the Secretary of Defense determines
are necessary to prevent the person from engaging in terrorism
• has agreed to share with the United States any information related to the
individual or his associates, and any information relevant to the security of the
United States, its citizens, or its allies.
These certification requirements largely mirror those found in current law (though the
interagency consultation requirements occurring prior to certification are different).
Unlike H.R. 1540, the Senate bill would not also require the Secretary of Defense to
certify that the receiving foreign entity agreed to permit U.S. authorities to have access to
the transferred individual. The certification is not necessary in the case of detainees who
are being transferred pursuant to either a pretrial agreement entered in a military
commission case prior to the date of enactment or a court order.
Section 1033 also generally prohibits transfers from Guantanamo to any foreign country or entity
if there is a confirmed case of a detainee previously transferred to that place or entity who has
subsequently engaged in any terrorist activity. The prohibition does not apply in the case of
detainees who are being transferred pursuant to either a pretrial agreement in a military
commission case, if entered prior to the enactment, or a court order.
Both the certification requirement and the bar related to recidivism may be waived if the
Secretary of Defense determines, with the concurrence of the Secretary of State and in
(...continued)
Rulings, by Jennifer K. Elsea and Michael John Garcia.
98 Certain restrictions in the 2011 NDAA are set to expire in January 2012. See supra, text accompanying footnote 72.
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consultation with the Director of National Intelligence, that alternative actions will be taken to
address the underlying purpose of the measures, or that, in the event that agreements or actions on
the part of the receiving state or entity cannot be certified as eliminating all relevant risks, that
alternative actions will substantially mitigate the risk.99 In the case of a waiver of the provision
barring transfers anywhere recidivism has occurred, the Secretary may issue a waiver if
alternative actions will be taken to mitigate the risk of recidivism. Any transfer pursuant to a
waiver must be determined to be in the national security interests of the United States. Not later
than 30 days prior to the transfer, copies of the determination and the waiver must be submitted to
the congressional defense committees, together with a statement of the basis for regarding the
transfer as serving national security interests; an explanation why it is not possible to certify that
all risks have been eliminated (if applicable); and a summary of the alternative actions
contemplated.
Like the House-passed version of the 2012 NDAA, the Senate bill’s transfer restrictions generally
apply to any “individual detained at Guantanamo” other than a U.S. citizen or servicemember (or
detainees transferred pursuant to a court order or a military commission pretrial agreement). This
term appears broad enough in scope to cover foreign refugees brought to the Migrant Operations
Center at Guantanamo after being interdicted at sea while attempting to reach U.S. shores.
Whether the section 1033 would be interpreted so broadly as to cover such persons remains to be
seen. The “requirements” of the section also apply to persons subject to mandatory detention
under section 1032, but not to all “covered persons” within the meaning of section 1031 (who are
not detained at Guantanamo).100
As previously discussed, the White House has expressed strong disapproval of the transfer
restriction provisions contained in the House-passed version of the 2012 NDAA. It would
presumably have similar concerns regarding the Senate bill.
Transfer of Guantanamo Detainees Into the United States
Section 1034 imposes a permanent prohibition on the use of DOD funds to construct or modify
any facility in the United States or its territories or possessions to house any individual detained at
Guantanamo Bay, as defined in the previous section, for the purposes of detention or
imprisonment in the custody or under the control of the Department of Defense unless authorized
by Congress. Similar restrictions are currently in place pursuant to the 2011 NDAA, but these
restrictions are set to expire at the end of the 2011 fiscal year.101 The funding limitation contained
in section 1034 is also similar to one found in H.R. 1540, except that the restrictions found in the
House bill only apply for the 2012 fiscal year.
Unlike most recent appropriations and defense authorization enactments (as well as the House-
passed version of the 2012 NDAA), the Senate bill does not contain a provision prohibiting the
transfer or release of Guantanamo detainees into the United States. The bill permits the transfer of
99 While current funding restrictions on detainee transfers also afford the Secretary of Defense limited waiver authority,
they do not permit the waiver of certification requirements. Moreover, though the Senate bill permits the Secretary to
waive the prohibition on the transfer of detainees where there is a confirmed case of recidivism, it establishes more
stringent requirements for the exercise of this authority than current law. See 2011 NDAA, P.L. 111-383, §1033; 2011
CAA, P.L. 112-10, §1013.
100See supra section describing §1032 (“Mandatory Military Detention”).
101 2011 NDAA, P.L. 111-383, §1034(a)-(b).
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Guantanamo detainees into the custody of civilian law enforcement for purposes of criminal
prosecution.102 Moreover, the bill does not bar executive authorities from releasing into the
United States those Guantanamo detainees who have been cleared of enemy belligerency status
by administrative authorities or a reviewing court.103 Thus, the only bar to detainee transfers to
the United States in the Senate bill appears to be transfers from Guantanamo for continued
military detention, at least where facilities would need to be built or modified.
Periodic Review of Detention of Persons at Guantanamo
Section 1035 addresses Executive Order 13567, pertaining to detention reviews at Guantanamo.
Unlike H.R. 1540, the Senate bill does not seek to replace the periodic review process established
by the Order, but instead seeks to clarify aspects of this process. Section 1035 requires the
Secretary of Defense, within 180 days of enactment, to submit to the congressional defense and
intelligence committees a report setting forth procedures to be employed by review panels
established pursuant to Executive Order 13567. The provision requires that these new review
procedures
• clarify that the purpose of the periodic review is not to review the legality of any
particular detention, but to determine whether a detainee poses a continuing
threat to U.S. security;
• clarify that the Secretary of Defense, after considering the results and
recommendations of a reviewing panel, is responsible for any final decision to
release or transfer a detainee and is not bound by the recommendations; and
• ensure that appropriate consideration is given to a list of factors, including the
likelihood the detainee will resume terrorist activity or rejoin a group engaged in
hostilities against the United States; the likelihood of family, tribal, or
government rehabilitation or support for the detainee; the likelihood the detainee
may be subject to trial by military commission; and any law enforcement interest
in the detainee.
Status Determination of Wartime Detainees
Section 1036 requires the Secretary of Defense, within 90 days of enactment, to submit a report to
congressional defense and intelligence committees explaining the procedures for determining the
status of persons captured in the course of hostilities authorized under the AUMF for purposes of
section 1031 of the Senate bill.104 In the case of any unprivileged enemy belligerent who will be
102 The bill permits the transfer of persons subject to sections 1031 or 1032 to a civilian court for prosecution as one of
the permissible dispositions under the law of war. See also S.Rept. 112-26, at 177 (“The committee understands that
this prohibition does not apply to Department of Justice funds that might be needed in connection with a transfer for the
purpose of a criminal trial.”).
103 Section 1032 of the Senate bill, which requires the mandatory military detention of members of Al Qaeda and
affiliated entities pending disposition under the law of war, would probably not apply to most, if not all, Guantanamo
detainees determined not to be involved in hostilities against the United States under the detention standard employed
by the D.C. Circuit and executive authorities.
104 It is not clear whether the status determination “for purposes of section 1031” means determination of whether a
captured individual is an unprivileged enemy belligerent who is a “covered person” subject to section 1031, or whether
it is meant to refer to the disposition of such a person under the law of war, or to both.
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held in long-term detention, clause (b) of the provision requires the procedures to provide the
following elements.
(1) A military judge shall preside at proceedings for the determination of status of an
unprivileged enemy belligerent.
(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented
by military counsel at proceedings for the determination of status of the belligerent.
The requirements of this provision apply without regard to the location where the detainee is held.
It would appear to afford detainees held by the United States in Afghanistan greater privileges
during status determination hearings than they currently possess (at least in circumstances where
the United States intends to place them in “long-term detention,” in which case the requirements
of section 1036(b) are triggered).105 It is not clear what effect this provision would have upon
detainees currently held at Guantanamo, who were designated as “enemy combatants” subject to
military detention using a status review process that did not fully comply with the requirements of
section 1036(b).106 Further, it is unclear how the requirements of section 1036 would affect
habeas challenges by Guantanamo detainees. It is possible, for example, that a habeas judge
would stay a case while a Guantanamo detainee sought to have a new status determination using
the process established under section 1036. The implications that section 1036 would have upon
persons held at Guantanamo may depend upon whether the provision is interpreted to apply to all
detainees in U.S. custody who are designated for long-term detention under the AUMF (possibly
as a supplement to the periodic review process described under section 1035), or only to persons
who are captured in the course of hostilities after the Senate bill’s enactment.
The provision does not explain, in the case of new captures, how it is to be determined prior to
the status hearing whether a detainee is one who will be held in long-term detention and whose
hearing is thus subject to special requirements, but “long-term detention” could be interpreted
with reference to law of war principles to refer to enemy belligerents held for the duration of
hostilities to prevent their return to combat, one permissible “disposition under the law of war”
under sections 1031 and 1032 of the bill. This reading, however, suggests that the disposition
determination is to be made prior to a status determination, which seems counterintuitive, or that
a second status determination is required for those designated for long-term detention. Captured
unprivileged enemy belligerents destined for trial by military commission or Article III court, or
to be transferred to a foreign country or entity would not be entitled to be represented by military
counsel or to have a military judge preside at their status determination proceedings.
Alternatively, the status review process required under section 1036 could be interpreted to apply
only to those detainees who have already been determined to be subject to “long-term detention.”
Under this reading, detainees who have not been designated by military authorities for long-term
detention might have their status determined under the existing administrative review processes
employed by the military, which would not be subject to the congressional notification
requirement.
105 See supra citations contained in footnote 33.
106 See supra section headed “Status Determinations for Unprivileged Enemy Belligerents.”
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Military Commissions Act Revision
Section 1037 amends the MCA to permit plea agreements in capital cases. It is substantially
similar to section 1033 of H.R. 1054, except that it does not amend the MCA to insert references
to capital cases into the existing section 949i of title 10, U.S. Code.
Author Contact Information
Jennifer K. Elsea
Michael John Garcia
Legislative Attorney
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
mgarcia@crs.loc.gov, 7-3873
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